Determination of Separation Date
Determination of Separation Date
In order to legally end your marriage, you need to get a divorce order from the Court. Separation is the first step to obtaining a divorce.
Pursuant to the Family Law Act, the separation date is the valuation date for the purposes of calculating net family property.
In some cases, it is quite clear when separation occurs. For example, one spouse leaves the family home or provides a separation agreement to the other spouse.
In other cases, the date of separation is disputed. There are two aspects to spouses living separate and apart. First, the parties must live apart from each other, and second, there must be an intention on the part of one or both of them to live separate and apart from the other. To live “apart” requires a physical separation between the parties. This means that the parties cannot be cohabiting in a conjugal relationship. However, the fact that they continue to reside in the same home together does not necessarily mean that they are not living apart. Spouses can be living separate and apart under the same roof.
Factors to Consider in Determining the Date of Separation
The relevant principles that emerge from the case-law to determine the date of separation can be summarized as follows:
• Whether there has been sexual relations between the parties.
• Whether the parties have been involved romantically with other people.
• Whether the parties have continued to discuss family issues and problems and communicate about daily issues.
• Whether the parties continue to be accountable to each other for daily activities.
• Whether the parties have continued to participate in joint social activities.
• Whether the parties spent vacations together.
• Whether the parties continued to share and participate in each other’s daily routines as in the past, such as eating meals together and sharing household chores.
• Whether the parties have celebrated special occasions together.
• Whether the parties have purchased gifts or exchanged other tokens of affection with each other.
• Whether the parties have supported each other with respect to extended family obligations.
• Whether the parties described their status on documents such as Income Tax Returns as separated.
• Whether there have been any changes in the way the parties manage their financial affairs, including whether they have taken steps to separate their financial dealings
• Whether the parties continued to share the use of assets?
Separation Agreement and Uncontested Divorce
The most efficient and cost-effective way of ending a marriage is by way of settling all claims in a separation agreement and filing an uncontested divorce application. The Family Law Act requires that, in order for a separation agreement to be enforceable, it must be in writing, signed by the parties, and witnessed. The ground for divorce is usually marriage breakdown by reason of the separation of at least one year and the Application is commenced at the Superior Court of Justice.
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